PAY EQUITY HEARINGS TRIBUNAL

PE-0714-00 Ongwanada, Applicant v Ontario Public Service Employees’ Union, Local 433, Respondent,

Before: Mary Anne McKellar, Vice-Chair, and Members, Catherine Bickley and Yvonne Blaszczyk at Holiday Inn Kingston

Appearances: Victoria Reaume for the Respondent; Carolyn Kay-Aggio for the Applicant.

Cite as: Ongwanada (October 26, 2001) 0714-00 (P.E.H.T.).

DECISION OF THE TRIBUNAL OCTOBER 26, 2001

INTRODUCTION

1The Applicant Ongwanada objects to the Order of the Review Officer dated September 1, 2000, requiring it to increase the job rates of the female job classes represented by the Respondent, the Ontario Public Service Employee’s Union (“OPSEU”), to match the job rates of their male comparator job classes represented by the Canadian Union of Public Employees, Local 29 (“CUPE”). Ongwanada relies on subsection 8(2) of the Pay Equity Act, R.S.O. 1990, c. P.7, as amended (“the Act”) in contending that the difference in job rates is permissible because it is attributable to a difference in bargaining strength as between OPSEU and CUPE.

THE ISSUE

2By preliminary motion, OPSEU seeks to have the Tribunal summarily dismiss Ongwanada’s Application on the basis that the latter’s conduct and representations, as well as the express agreement of the parties, preclude reliance on subsection 8(2) of the Act.

3Not only does Ongwanada oppose OPSEU’s motion, but it also takes the position that the Tribunal is without jurisdiction to hear it because the issue of whether Ongwanada’s conduct precluded it from relying on subsection 8(2) of the Act was not raised with the Review Officer.

THE DECISION

4The Tribunal finds that OPSEU’s motion is properly before it.

5OPSEU’s motion is dismissed.

THE FACTS

6The Tribunal heard no evidence on the motion. Instead, the parties filed an Agreed Statement of Fact and made their legal submissions based on it. The Agreed Statement of Fact, absent references to attached exhibits, is set out below:

AGREED STATEMENT OF FACT

1. The Applicant Ongwanada is a non profit charitable organization funded primarily by the Ontario Ministries of Community and Social Service and Municipal Affairs and Housing.

2. Ongwanada offers a continuum of community residential and support service to persons of all ages with development disabilities in the Kingston and Eastern Ontario Region. It operates twenty-seven homes in addition to the Resource, Crescent and Balsam Grove Centres which provide a variety of services to clients.

3. Ongwanada employs approximately 450 employees. The Canadian Union of Public Employees Local 29 represents approximately 42 employees. The Respondent OPSEU local 433 represents approximately 276 employees at the Hospital.

4. Ongwanada posted a pay equity plan for the CUPE bargaining unit on or about November 9, 1989. Under this plan, all adjustments were made and pay equity achieved in 1990.

5. Ongwanada posted a pay equity plan for the OPSEU bargaining unit on or about November 8, 1991.

6. The Plan noted the female job classes in the establishment and recognized that there were no male job classes in the bargaining unit.

7. Paragraph 3 of the Plan provides that male job classes employed outside the bargaining unit would be used for purposes of comparison. These male comparators were identified in the Plan under paragraph 3. The male comparator job classes were found in the CUPE Local 29 bargaining unit and are listed as follows: Plumber, Maintenance, Mechanic, Storeskeeper, Handyperson, Facility Coordinator.

8. Under the Plan pay equity adjustments for the female job classes in the OPSEU unit were to be implemented over a period of years resulting in the achievement of pay equity for the OPSEU female job classes in 1995.

9. In paragraph 8 of the Plan the parties recognized that negotiations or arbitrated collective agreements could change the total cost of pay equity adjustments then contemplated by the Plan. They agreed as follows:

The parties understand that pay equity is designed to eliminate the wage gap that exists between equal or comparable female job classes and male job classes. The difference in pay between the compared classes is to be eliminated by January 1, 1995. Since the total cost of pay equity is based on January 1, 1990 salaries, the actual total cost of pay equity by January 1, 1995 may be higher or lower than predicted and discussed during the pay equity negotiations. This would occur if the male or female job classes compared received different percentage increases as a result of negotiated or arbitrated collective agreements or if an adjustment is given only to the male or female class compared.

Bargaining History with CUPE

10. Ongwanada has been participating with the OHA in Central OHA negotiations with the Ontario Council of Hospital Unions including CUPE since prior to 1980.

11. OPSEU was not part of that process.

12. The 1993 CUPE collective agreement expired on September 28, 1994. Under that interest arbitration award was issued in 1996 but no increases were awarded.

13. Ongwanada’s previous coordinator of Human Resources, John Upper wrote to OPSEU Local 433 on November 23, 1994 and stated the following:

The CUPE collective agreements expired September 28, 1994 and therefore if any salary adjustments are made in CUPE further pay equity adjustments will be made payable to the OPSEU positions affected retroactive to January 1, 1995.

Regarding the query about the maintenance for pay equity in the future, the Pay Equity Commission advised that we should continue to meet on an annual basis to ensure the male comparators are still valid.

14. Prior to the expiry of the subsequent CUPE agreement, Ongwanada agreed to participate again in the central bargaining process with the OHA and Ontario Council of Hospital Unions. The parties signed a Memorandum of Conditions for Joint Bargaining with CUPE in January 1996.

15. Negotiations between the OHA and the Council of Hospital Unions took place over several years.

16. On November 1, 1996 John Upper, Coordinator of Human Resources at Ongwanda wrote to Marilyn Rawding, Acting President of OPSEU Local 433 “Re OPSEU Pay Equity” and stated as follows:

As per our letter dated November 23, 1994 to Michael Fitzpatrick, we agreed to meet with the OPSEU Pay Equity Team on an annual basis in order that pay equity continues to be maintained.

During 1996 there have been no pay increases for union/management positions. The pending central bargaining CUPE award for the collective agreement which expired on September 28, 1993 was issued and effective on June 4, 1996 but no pay increases were awarded. Therefore no further pay equity adjustments retroactive to January 1, 1995 were payable to affected OPSEU positions.

If any salary adjustments are made in the pending CUPE Central bargaining for the collective agreement which expired on September 28, 1995, pay equity adjustments will be made payable to the OPSEU positions affected retroactive to January 1, 1996.

If we do no hear from you we will assume that you concur with this letter and that a meeting is not required at this time.

17. In May of 1999 the OHA and the Council of Hospital Unions presented their briefs to the interest Arbitration Panel chaired by George Adams.

18. In the interim, in August of 1998, Ongwanada and OPSEU agreed to a “Pay Equity Maintenance Plan” and agreed in that Maintenance Plan.

19. In June of 1999 the Interest Arbitration award between the OHA and the Council of Hospital Unions was issued by Chairperson George Adams. The Board awarded percentage increases to the CUPE and SEIU bargaining unit members governed by the award.

History of OPSEU Negotiatons

20. OPSEU does not, and did not, participate in the central bargaining process.

21. In 1995 Ongwanada and OPSEU negotiated a collective agreement for the period April 1, 1994 to March 31, 1996. No wage increases were agreed to. The parties agreed to a “signing bonus”.

22. For the collective agreement from April 1, 1996 to March 31, 1997, the parties did not agree to a wage increase. OPSEU agreed to a 1% reduction to salary.

23. The 1996-1997 collective agreement was extended to March 31, 1998 without any wage increase.

24. In 1998 the parties agreed to a collective agreement wage increase of 1%.

25. In April of 1999 the parties agreed to a collective agreement wage increase of 2%.

26. In April of 2000 the parties agreed to a collective agreement wage increase of 2%.

Review Services

27. Following the release of the CUPE interest arbitration award, OPSEU requested a meeting with Ongwanada. In a meeting held July 14, 1999 OPSEU requested that Ongwanada follow the CUPE award.

28. At that meeting Ongwanada raised the issue of s. 8(2) for the first time stating that it would be relying on this provision of the Act and would file an application for Review Services.

29. Review Officer Barbara Hershorn was appointed as review officer. She received submissions from the parties.

30. Subsequently, Review Officer Colleen Montgomery reviewed the submissions of the parties and issued her Order dated September 1, 2000.

31. Ongwanada subsequently applied to the Tribunal concerning the Order.

THE ARGUMENTS AND THE ANALYSIS

7The Tribunal heard four distinct legal arguments, which are briefly summarized and then analyzed below.

(i) Jurisdiction

8Ongwanada argued that the Tribunal is without jurisdiction to consider OPSEU’s motion because the subject matter of that motion was not raised with the Review Officer(s) assigned to this file. It cited the Tribunal’s decision in Scarborough (No. 1) (1994), 5 P.E.R. 45 in support of this argument.

9OPSEU referred the Tribunal to its written submissions filed with the Review Officer. Those submissions set out OPSEU’s view that ss. 8(2) of the Act was not applicable due to the circumstances of the OPSEU and CUPE collective bargaining, as well as a copy of a letter from Ongwanada that appeared to contemplate the continued matching of the CUPE and OPSEU job rates. In short, OPSEU submitted that the substantive issue of the applicability of ss. 8(2) in the circumstances of this case was raised with the Review Officer, and that was sufficient to cloak the Tribunal with jurisdiction to deal generally with issues pertaining to its applicability.

10A number of Tribunal decisions have grappled with the relationship between Review Services and the Tribunal, and the impact of the former’s activities on the latter’s jurisdiction. A brief review of that jurisprudence provides a useful backdrop for considering the submissions in this case.

11The jurisdictional question in Haldimand-Norfolk (No.1) (1989), 1 P.E.R. 1 turned on the interpretation of section 25(1)(a) of the Act, which provides that the Tribunal “shall hold a hearing if a review officer is unable to effect a settlement of a complaint and has not made an order”. The dispute in that case was whether the Tribunal could conclude that the Review Services process was exhausted, or whether it had to wait for the Review Officer to reach that conclusion before assuming jurisdiction over the Application. The Tribunal held that it must decide the issue, commenting as follows about the role of Review Services:

32. . . . . There is no dispute that the Review Services is by the construction of the Act, the front line investigative and settlement mechanism of the Pay Equity Commission. Section 22 contemplates that any employer, employee or group of employees or their bargaining agent if any, may file a complaint with the Commission that there has been a contravention of the Act, the regulations or an order of the Commission. Section 23 clearly envisions that a review officer shall investigate the complaint and may endeavour to effect a settlement. Counsel spent considerable time tracing the mandatory investigative and discretionary settlement duties of officers, as well as their adjudicative functions where they exist.

33. The role given to the review officer is a reflection of the existing labour relations framework in this province where settlement of disputes without resort to third party adjudication is clearly the preferable goal. The Legislature has recognized that parties must continue to foster healthy labour relations while at the same time meeting their obligations under the Pay Equity Act. Where parties in a collective bargaining relationship cannot agree, the review officer’s investigative and meditative skills are utilized to attempt a resolution. The review officer differs from other labour relations officers in that in some parts of the Act she also performs a first level adjudicative function which requires the determination of the merits of a dispute.

12The Tribunal followed Haldimand-Norfolk (No.1) in (Women’s College Hospital (No.1) (1989), 1 P.E.R. 53) holding that whether or not the Tribunal had jurisdiction under section 25(1)(a) to hold a hearing was dependent on “whether there has been a reasonable opportunity for a settlement to be effected” (at paragraph 7). The same analysis was also employed in St. Michael’s Hospital (No.2) (1990), 2 P.E.R. 187. In that case, however, the Tribunal concluded that there had not been a reasonable opportunity for settlement, noting that the bargaining agent’s concerns with the proposed evaluation system were not fully articulated until it applied to the to the Tribunal:

31. . . . The allegations raised by ONA in its Application extend beyond the general concerns expressed to the Hospital in bargaining and include a detailed critique of the elements of the Hay system. We believe that these parties should have an opportunity to discuss these issues at Review Services before the matter proceeds to the Tribunal, if a settlement is not effected.

32. . . .The Tribunal must balance the need to ensure the efficacy of the Review Services process with the parties’ right to have their matter determined by the Tribunal once that appears to be the most efficient alternative. In this case, we are not convinced that there was a reasonable opportunity for a settlement to be effected by the Review Officer. We believe that the parties would benefit from more negotiations, with the assistance of a Review Officer, to ensure that each side fully understands the position of the other and that all the possibilities for a mutually agreeable settlement are canvassed.

13In Thunder Bay Family and Children’s Services (1990), 2 P.E.R. 27, a party challenged a Review Officer’s jurisdiction to determine a certain issue. The Officer requested submissions on that jurisdictional issue. Before the Officer had had an opportunity to receive and consider those submissions, however, the party asked the Tribunal to determine whether the Officer had jurisdiction. The Tribunal held that the application before it was premature, as the Officer had clearly not completed the investigation, and added “we do not believe that we should permit parties effectively to by-pass Review Services this readily by assuming jurisdiction to hear this application at this time” (at paragraph 13). Similar comments are also found in Ottawa-Carleton (1995), 6 P.E.R. 212, and Villa Colombo (1997), 8 P.E.R. 133, at paragraph 13.

14The preceding decisions provide a context for Scarborough (No.1), supra, which Ongwanada relied on, and which the Tribunal has subsequently followed in Ottawa Board of Education (1995), 6 P.E.R. 45. In Scarborough (No.1), an individual employee complained to Review Services, alleging that her job duties and responsibilities had changed subsequent to the preparation of a pay equity plan such that the plan was not appropriate for her job class. The Review Officer determined that the changes to the job duties impacted only one of the sub-factors used in the evaluation system. The employer objected to the Order. In her response and at the hearing, counsel for the employee suggested for the first time that the dispute between the parties might extend to challenging the whole of the system. In the passage of the decision relied on by Ongwanada, the Tribunal said:

16. What is substantively at issue in any application to the Tribunal is a function of several variables:

(1) the substantive issues the parties took to Review Services;

(2) any additional issues the Review Officer may have raised and decided by order or referred to the Tribunal;

(3) the issues the parties raised in their pleadings to the Tribunal; and

(4) any agreements the parties may have reached subsequent to the close of pleadings.

17. Items (1) and (2) determine the outermost parameters of the issues that may come before us. In other words, we can deal with anything that was dealt with by the Review Officer. That does not mean, however, that we always hear evidence about and inquire into everything that was before the Officer. If that were the case, there would be little need for pleadings and rules of practice that require the parties to set out the issues they want resolved, and the facts and events upon which they rely. Those pleadings and agreements between the parties, contained for example in pre-hearing conference memoranda of agreement, can narrow the range of the Tribunal’s inquiry from the full scope of issues raised at Review Services, but cannot broaden them to include issues additional to ones canvassed there.

15From the examination of the above cases, several principles emerge.

• the Tribunal determines whether a matter is properly before it.
• although the Tribunal has sometimes referred to the above inquiry as being jurisdictional in nature, it has also characterized it as a question of timeliness, and held that it is premature to deal with issues not fully canvassed at Review Services.
• regardless of characterization, the Tribunal’s refusal to deal with matters not canvassed at Review Services has only ever been applied with respect to substantive issues.
• the rationale for this approach has been based on ensuring the efficacy of Review Services’ investigative and mediative role.

16Having regard to all of the above principles, there is no compelling reason in this case for the Tribunal to decline to deal with what is a purely legal argument by OPSEU, related to a substantive issue dealt with by Review Services, where addressing the issue neither impairs or undermines the officer’s investigative and mediative role.

17OPSEU’s motion is therefore properly before the Tribunal. We address the merits of the various grounds on which OPSEU asserts that the Tribunal should refuse to convene a hearing into the merits of the ss. 8(2) issue.

(ii) Construction of the Pay Equity Plan

18OPSEU argued that the pay equity plan between it and Ongwanada expressly contemplated that increases to the CUPE male comparator job rates would result in matching increases to the job rates of the comparably valued OPSEU female job classes. In support of this argument, OPSEU points to paragraph 8 of the pay equity plan, reproduced at paragraph 9 of the parties’ Agreed Statement of Fact above. OPSEU also notes that the plan is “deemed approved” pursuant to section 14(5) of the Act, with the consequence that the parties are bound to its terms, and those terms cannot be varied except in very limited circumstances, which do not obtain here.

19Ongwanada submits that the plain reading of paragraph 8 of the plan is that it addresses the relationship between the CUPE and OPSEU job rates between the posting date (November 8, 1991), and the statutorily specified achievement date (January 1, 1995 at that time). Consistent with the dictates of the Act, the plan provides that the job rates for comparably valued male and female job classes will “match” at the point of achievement. Ongwanada notes that ss. 8(2) only relates to differences in job rates that arise “after pay equity has been achieved”. Consequently, paragraph 8 of the plan cannot be construed to preclude reliance on it.

20The scheme of the Act requires employers and bargaining agents to agree on pay equity plans in accordance with statutorily-specified time frames (Section 10). The Act then contemplates the payment of annual adjustments under the plan, with another deadline by which pay equity in the public sector must be achieved. Pay equity is achieved when the job rates of female job classes are at least equal to the job rates of comparably valued male jobs classes. When these parties negotiated their pay equity plan, ss. 14(7) required pay equity to be achieved by January 1, 1995. That is the date that appears in their plan. Subsection 14(7) was subsequently amended to extend the achievement date to January 1, 1998, but that amendment has no bearing on this decision.

21Section 8 of the Act describes the limited circumstances in which it is acceptable for different job rates to attach to comparably valued male and female job classes. Subsection 8(2) specifically provides:

After pay equity has been achieved in an establishment, this Act does not apply so as to prevent differences in compensation between a female job class and a male job class if the employer is able to show that the difference is the result of differences in bargaining strength.

22A pre-condition to reliance on the above subsection is that pay equity be achieved. See York Region Board of Education (CUPE) (1995), 6 P.E.R. 3.

23Paragraph 8 of the pay equity plan clearly addresses the parties’ obligations with respect to pay equity implementation up to the achievement date. The document contains no contractual covenants respecting what will occur after that date with respect to the maintenance of pay equity. Having regard to this fact and the fact that ss. 8(2) has no application until after pay equity has been achieved, we do not construe paragraph 8 as constituting an agreement that Ongwanada would not seek to rely on the bargaining strength exception at some later date.

24Ongwanada is not precluded by the terms of the pay equity plan from seeking to establish that the bargaining strength exception contained in section 8(2) justifies the difference in the OPSEU and CUPE job rates. We need not consider any subsidiary issues arising out of the plan’s deemed approved status.

(iii) No Prima Facie Case

25OPSEU takes the position that Ongwanada’s pleadings and the Agreed Statement of Fact do not establish a prima facie case. OPSEU relies on a passage in Stevenson Memorial Hospital (1999), 10 P.E.R. 60, stating that bargaining strength in section 8(2) refers to “the strength exercised by a bargaining agent on behalf of a bargaining unit” as precluding Ongwanada’s reliance on the subsection because its collective agreement with CUPE was the result of joint bargaining by both CUPE and the Service Employees’ International Union.

26Ongwanada submits that the Tribunal should not rely on that passage in Stevenson as justifying the summary dismissal of its case for failure to state a prima facie case for two reasons. The first was that to do so would oust the jurisdiction of the Tribunal to employ reasoning different from the Stevenson reasoning in another case. The second was that the proposition that OPSEU seeks to rely on Stevenson as establishing that there is no prima facie case here was not an issue that had to be decided in that case.

27There was no dispute between the parties respecting the appropriate standard to apply in determining whether an applicant has stated a prima facie case. Indeed, the Tribunal has developed extensive jurisprudence on this point. See Peterborough (1991), 2 P.E.R. 86; Liquor Control Board of Ontario (1991), 2 P.E.R. 193; Great Lakes Brick and Stone Ltd. (1994), 5 P.E.R. 1; Parry Sound District General Hospital (1996), 7 P.E.R. 73; and Villa Colombo, supra. For the purposes of this decision, the Tribunal adopts the following formulation of the test: if everything in the Agreed Statement of Fact and Ongwanada’s pleadings are assumed to be true, is there any basis for the Tribunal’s finding that the differences in the job rates as between OPSEU and CUPE are attributable to the superior bargaining strength of the latter?

28Ongwanada is correct in its assertion that the Tribunal is not bound to follow its own previous decisions. Earlier decisions may have persuasive value, but they do not have precedental value. The consequence of this distinction is that the Tribunal is not required to follow or adopt any of the determinations in Stevenson, and either party is at liberty to attempt to persuade it to employ different reasoning. Accordingly, it would be unfair to deprive Ongwanada of that opportunity by dismissing its application for failure to state a prima facie case, based on a statement in the very decision it may urge us not to follow.

29Even absent considerations of fairness, however, the Tribunal does not view Stevenson as providing it with any basis for concluding that Ongwanada has not stated a prima facie case. OPSEU’s argument is entirely dependent on language that was not dispositive of the issue in Stevenson, and was in fact expanded upon and clarified later in that decision. In Stevenson, the employer attempted to rely on the bargaining strength exception in ss. 8(2) to justify a difference in the job rates of comparably valued male and female job classes in the same bargaining unit:

An interpretation of “bargaining strength” which contemplated power comparisons as between occupational groups within a bargaining unit would be jarring in the context of the collective bargaining regime. Moreover, such an interpretation would be contrary to the common usage of the phrase “bargaining strength”. The words “bargaining strength” are used to refer to the power exercised by a bargaining agent on behalf of all members of a bargaining unit, not power which is parceled out unevenly between different occupational groups within the membership. (para. 28)

Stevenson did not decide that ss. 8(2) can only be relied on where a bargaining agent negotiates alone rather than jointly. It does not provide any basis for dismissing Ongwanada’s application for failure to state a prima facie case.

30In summary, Stevenson does not stand for the proposition for which OPSEU has cited it. Even if it did, it would be open to Ongwanada to urge the Tribunal not to follow it. Accordingly, Ongwanada’s application does state a prima facie case and OPSEU fails on the second ground of its motion. Of course, it remains open to OPSEU to argue at a later stage of the proceeding that ss. 8(2) has no application to joint bargaining of the kind that occurred here, and has no application where job rate increases are ordered in an interest arbitration award.

(iv) Promissory Estoppel

31OPSEU argued that Ongwanada is estopped from relying on ss. 8(2) because of its conduct. OPSEU says that Ongwanada has made representations on this matter affecting the relations between the parties, and that OPSEU has relied on those representations to its detriment.

32Ongwanada contends that promissory estoppel cannot be invoked to preclude the application of a statutory provision and it denies having made any representation not to rely on ss. 8(2). Finally, Ongwanada submits that there was no evidence of detrimental reliance on OPSEU’s part.

33There was no dispute respecting the elements required to establish promissory estoppel. While these principles were articulated in slightly different ways in a number of the authorities presented to us, the variations are of no material significance to this case. For the purposes of this decision, the Tribunal adopts the following statement of the doctrine of promissory estoppel set out in the following passage from Canadian National Railway Co. et al. v. Beatty et al (1982), 1981 CanLII 2953 (ON HCJDC), 34 O.R. (2d) 385:

The arbitrator later sets out the principle as enunciated by Denning L.J. in Combe v. Combe, [1951] 2 K.N. 215, [1951] 1 All E.R. 767 at p. 770. That exposition of the doctrine was as follows:

The principle, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced, even though it is not supported in point of law by any consideration, but only by his word.

Elsewhere, Denning L.J. is said to have explained that the doctrine is only applicable where the parties have already entered into a definite and legal contractual or analogous relationship, when there exists some conduct or promise which induces the other to believe that the strict legal rights under the contract will not be enforced or will be kept in suspense and that “having regard to the dealings which have taken place between the parties” it will be inequitable to allow that party to enforce their strict legal rights.

34The doctrine of promissory estoppel is frequently invoked in the context of grievance arbitrations, where it necessarily relates to a representation that a party will not insist on his strict contractual rights. In such situations, the party who contracted for it has the capacity to forego its benefit. By contrast, the provisions of a statute are often said not to be subject to estoppel, because the parties do not have the capacity to create the provisions nor to ignore them. It is, however, true that a party may be found to have waived the benefit of a statutory provision that operates to its individual benefit, rather than to the benefit of the public at large. (See Spencer Bower and Turner, The Law Relating to Estoppel by Representation, (3d. ed.) (Butterworths: London, 1977), at pp. 142-43)

35OPSEU referred us to Maracle v. Travellers Indemnity Co. of Canada, [1999] 2 S.C.R. 50 as supporting the proposition that a party may be estopped from relying on the provisions of a statute. Upon review, however, the case does not clearly support this proposition, since it deals with an action on an insurance contract that incorporated certain mandatory provisions specified in the Insurance Act, including a limitation period in respect of actions under the contract. It is, however, of interest with respect to the precision of the representation that must be made in order to constitute estoppel.

36Maracle deals with whether an insurer can defend against an action on an insurance contract by relying on a limitation period after it has made a “without prejudice” offer to settle the claim. The insured argued that the insurer was estopped from relying on the limitation period. The Court found that estoppel did not lie because the insurer had never clearly represented that it was waiving its right to rely on the limitation period:

The principles of promissory estoppel require that the promissory, by words or conduct, intent to affect legal relations. Accordingly, an admission of liability which is to be taken as a promise not to rely on the limitation period must be such that the trier of fact can infer from it that it was so intended. There must be words or conduct from which it can be inferred that the admission was to apply whether the case was settled or not, and that the only issue between the parties should litigation ensue, is the issue of quantum. Whether this inference can be drawn is an issue of fact. If this finding is in favour of the plaintiff and the effect of the admission in the circumstances led the plaintiff to miss the limitation period, the elements of promissory estoppel have been established.

Application to this Case

The trial judge expressly found that the words and conduct referred to herein could not be interpreted as a promise, express or implied, not to rely on the limitation period. While the majority of the Court of Appeal were of the view that the admission of liability in this case went beyond an offer of settlement, they do not explain how they were able to infer that it extended to the limitation period. Not only is there no evidence to suggest that the admission was intended to have this effect, but the letter of February 23, 1983 was made “without prejudice” to the liability of the insurer. The use of this expression is commonly understood to mean that if there is no settlement, the party making the offer is free to assert all its rights, unaffected by anything stated or done in the negotiations. In my opinion, therefore, the trial judge, having found that there was no promise relating to the limitation period, was correct in concluding that promissory estoppel had not been made out. (at pp.58-59)

37The British Columbia Labour Relations Board in E & N Railway Co. (1968) Ltd. and B.L.E., Division 320 et al (1999), 51 C.L.R.B.R. 270 held that to be estopped from seeking relief under a section of the Labour Code, a party would have had to make a specific representation not to invoke that section.

38Assuming for the moment that promissory estoppel can prevent Ongwanada’s reliance on ss. 8(2), has Ongwanada made a clear representation that it would not rely on this statutory provision?

39Ongwanada did represent to OPSEU in its letters of November 23, 1994 and November 1, 1996 that “if any salary adjustments are made in CUPE further pay equity adjustments will be made payable to the OPSEU positions affected”. These statements were made in the context of reporting to OPSEU that CUPE had not secured a wage increase. They are consistent with an understanding by Ongwanada that once pay equity has been achieved, there is an ongoing obligation to maintain pay equity. Applying the Maracle analysis, however, they do not amount to a clear representation not to rely on the ss. 8(2) exception.

40The parties’ Maintenance Plan, executed in August 1998 post-dates the letters referred to in the preceding paragraph, but pre-dates the CUPE job rate increase. It explicitly refers to the maintenance committee’s mandate as reviewing and monitoring, inter alia, “permissible differences”, and adds that the major task of the committee is to “discuss the pay equity implications of any changes in the workplace and negotiate any required adjustments.” Even had we found that the 1994 and 1996 letters constituted a clear representation not to rely on ss. 8(2), we would have construed the language used in the Maintenance Plan as either muddying the clarity of those earlier representations or as signalling an end to any estoppel created by them.

41Even if the other necessary elements of an estoppel had been established, OPSEU’s motion could only succeed if it could establish detrimental reliance on Ongwanada’s clear representations not to invoke ss. 8(2). OPSEU suggested that it acted to its detriment when it did not avail itself of the opportunity to negotiate a difference arrangement with Ongwanada. We heard no viva voce evidence on this point, and were asked merely to infer that this was the case on the basis of the Agreed Statement of Fact.

42As noted above, the terms of the Maintenance Plan on their face suggest that permissible differences in compensation between OPSEU jobs and their male comparators were to be reviewed by the committee. That language is clearly broad enough to include differences permitted pursuant to ss. 8(2). If the intention was for the compass of that language to be narrower, it would have been helpful to the Tribunal to have heard evidence to that effect from those who negotiated the Maintenance Plan. The Tribunal also notes that if the understanding was simply that any CUPE increases would flow through to the affected OPSEU job classes, there was really very little need for a “maintenance” plan at all, particularly since section 14.1(1) of the Act expressly makes provision for the negotiation of amendments to the pay equity plan in the event of changed circumstances. It appears to the Tribunal more likely than not that permissible differences in CUPE and OPSEU job rates were contemplated in August 1998 when the Maintenance Plan was entered into, and that OPSEU had the opportunity at that time to seek to negotiate clearer language with respecting to maintaining parity with CUPE. Similarly, it had another opportunity to do so the following year when it renegotiated its collective agreement in April 1999.

43OPSEU has not adduced sufficient evidence for the Tribunal to find that it acted to its detriment on any representations made by Ongwanada.

CONCLUSION

44The motion is dismissed.

45In accordance with the parties’ Pre-hearing memorandum of Agreement date February 6, 2001, this matter will be scheduled for another pre-hearing.

Dated at Toronto, Ontario this 26th day of October, 2001

Mary Anne McKellar, Vice-Chair

Yvonne Blaszczyk, Member

”Dissent to Follow”__________________ Catherine Bickley, Member